J U D G M E N T

SANJEEV NARULA, J. (Oral):

I.A. No. 11551/2021 (seeking condonation of delay in filing petition)

1. The petition has been filed beyond the period of three months prescribed under Section 34 (3) of the Act. However, it is within the permissible extended period of limitation as provided by the Supreme Court in Suo Motu Writ (Civil) No. 3/2020 titled In Re: Cognizance for Extension of Limitation.

2. For the grounds and reasons stated in the application, delay in filing the petition is condoned.

3. Accordingly, the application stands disposed of.

O.M.P. (COMM) 267/2021

4. The present petition under Section 34 of the Arbitration and Conciliation Act, 1996 [hereinafter referred to as ‘the Act’] has been filed by Vascon Engineers Ltd. (being the Claimant before the Arbitrator) [hereinafter referred to as ‘Vascon’] seeking setting aside of the Arbitral Award dated 31st December, 2020 [hereinafter referred to as ‘Award’], whereby the Ld. Sole Arbitrator has rejected certain claims of Vascon.

5. Recently, this Court had the occasion to deal with a challenge to the impugned Award at the instance of the Directorate General of Married Accommodation Project (DG-MAP), working under the Ministry of Defence, Union of India [hereinafter referred to as ‘DG-MAP’] in O.M.P. (COMM) 262/2021, which was decided vide order dated 03rd September, 2021. In the said judgment, the Court recounted the facts of the case exhaustively. Thus, for the sake of brevity, the same are not being repeated and are be read as part of the instant order.

6. The challenge in the present petition is confined to rejection of following claims: (I) Claim No. 1 Part - III (Additional work of Sagol/ Neeru Finish in internal plaster); (II) Claim No. 2 (Increase in rates of cement, steel, sand and coarse aggregates); (III) Claim No. 4 (Increase in labour costs); Claim No. 9 (Delayed / Underpayment of RARs); (IV) Claim No. 10(a) (Prolonged commitment to contract); (V) Claim No. 10(b) (Prolonged commitment of Claimant’s T&P); and (VI) Claim No. 10(c) (Prolongation of the validity periods of the Bank Guarantees).

CLAIM WISE OBJECTIONS AND ANALYSIS:

I. CLAIM NO. 1 PART - III (ADDITIONAL WORK OF ‘SAGOL/NEERU FINISH’

IN INTERNAL PLASTER)

7. Mr. Arvind Sharma, counsel for Vascon, impugns the Award in respect of rejection of Claim No. 1 Part - III, by making the following submissions: - (i) The Contract1 provided for getting “even and fair” finish in internal plaster while specifying the use of river sand from the specified source – viz. Ghodnadi/ Mungi Paithan. However on site, DG-MAP demanded “even and smooth” finish. This was not possible as per the specifications of the Contract, given the quality/coarseness of sand available from the specified sources. The specifications “even and fair” and “even and smooth” are two distinct requirements. The only way of getting “even and smooth” finish was to provide a layer of ‘sagol/neeru finish’, over the finish of plaster, which amounts to additional work, and for that Vascon should be compensated.

(ii) Vascon, provided a layer of sagol finish over the internal plaster surfaces, on specific instructions. The additional work done was duly accepted by DG-MAP, and carried out under close supervision of DG-

MAP’s on-site engineers; yet the payment was unlawfully withheld.

(iii) Reliance is placed upon two judgments of this Court:

(a) Union of India v. Inderjit Mehta Construction Pvt. Ltd.,2 wherein,

1 On 17th September, 2009, Vascon was awarded the work of “Completion of Balance Works of Construction of Dwelling Units Including Allied External Services at Kirkee (Aundh) Pune Army” [hereinafter referred to

as the ‘Contract’].

2 2018 SCC OnLine Del 9063, at paras 16-19.

after considering similar contractual provisions, this Court upheld the arbitral award for payment of sagol finish, when the specifications provided for “fair & even” finish.

(b) MCD v. Ravi Kumar,3 where this Court held that by accepting additional work, notwithstanding a formal agreement,